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.G73 
Copy 1 


SPEECH 


OF 

MK. (Graham, of north Carolina 


THE DISTRICTING CLAUSE 


OF 

THE APPORTIONMENT BILL. 


PEUTKllED 


IN THE senate OF THE UNITED STATES, 


June 3, 1842. 


WASHINGTON: 


PRINTED AT THE NATIONAL INTELLIGENCER OFFICE. 





SPEECH. 


The Apportionment Bill being under consideration— 

Mr. GRAHAM said: 

Mr. President : I am aware of the impatience of the Senate to 
vote on this bill, and of the urgency with which the State Legisla¬ 
tures, either now in session or shortly to convene, demand speedy 
action upon it. But, as the provision contained in the second sec¬ 
tion of the bill, requiring members of the House of Representatives 
to be chosen in every State by single districts, is about to be estab¬ 
lished by a law of Congress tor the first time, and as it has been in¬ 
veighed against in this debate as an innovation, not solicited or de¬ 
sired in any quarter, contrary to the faith and spirit of the Constitu¬ 
tion, and forbidden by its terms, 1, who give to it my cordial appro¬ 
bation, must claim your indulgence to offer my views in its defence. 

I have listened attentively to the new, bold, and ingenious theory 
of the honorable Senator from Alabama (Mr. Bagby) who has just 
taken his seat, affirming that the election of members of the House 
by general ticket, as it is called, where each and every elector votes 
for as many members as are to be chosen from the State, is the only 
constitutional mode of election ; and, by consequence, that the prac¬ 
tice which has prevailed for fifty years in four-fifths of the States of 
the Union is utterly at variance with the true meaning of the Consti¬ 
tution. Those who adopt this theory, which implies that the con¬ 
temporaries and many of the framers of the Constitution did not 
comprehend its true import on this important subject of representa¬ 
tion, and that the action of the Federal Government, as well as that 
of almost every State, for more than half a century, has been erro¬ 
neous in regard to it, will look with some charity upon whatever of 
novelty there may be in the uniform system of election by districts 
as now proposed. Their own idea, that the general ticket system is 
the only constitutional mode of choosing Representatives, is not only 
novel, but fraught, as I conceive, with danger to the Union itself; 
inasmuch as, practically, it would enable four, or at most five, of the 
twenty-six vStates o( the Confederacy (should they be so disposed) 
to control the most important branch of the National Legislature. 
This construction of the Constitution, as I understand the argument 
of the Senator, is derived solely from the direction that members of 
the House of Representatives shall be chosen ‘‘by the People of the 
several States;” and he insists that it is an abridgment of the right 
of suffraf^-e not to allow every elector to vote for as many members 
as are to be elected from the State of which he is a citizen. The 
error of this construction 1 apprehend to consist in allowing too much 



4 


force to mere general words, without reference to circumstances 
which restrain and control their generality. The very same sentence 
of the Constitution proceeds to negative the supposition that the 
whole “ People” are to vote by requiring the electors to “ have the 
qualifications requisite for electors of the most numerous branch of 
the State Legislature, thus excluding a large portion (perhaps a ma¬ 
jority) of those who are properly denominated “ People” of the State 
from the right of suffrage altogether. The bills of rights in many 
of the State constitutions declare that “ all political power is vested 
in and derived from the People only and that “ the legislative au¬ 
thority shall be vested in two distinct branches, both dependent on 
the PeopleP But no one has ever inferred from these general ex¬ 
pressions that members of the State Legislatures are, each, to be 
elected by the entire body of the People of the State. 

Having reference to public convenience, as well as to the true 
theory of representative government, every State has directed its 
Legislature to be constituted by divisions of the People choosing rep¬ 
resentatives, each for itself, and these, together, forming its General 
Assembly. The impropriety as w^ell as the danger of attaching too 
much importance to mere general terms, without reference to any¬ 
thing else, is most strikingly manifested by adverting to the very 
first words of the Constitution. If the expression, “ we the People 
of the United States,” is to be allowed the same liberal interpretation 
which is sought, for the purposes of this argument, to be given to the 
terms “ People of the several States,” then the confederated char¬ 
acter of the Government is gone, and it becomes the Government of 
the aggregate mass of the People of the Union. 

Sir, I will not venture to assert that either of the modes of elec¬ 
tion now in question is unconstitutional. So far as I can perceive, 
in the discretion of Congress, or, if Congress deem it inexpedient 
to make regulations, in the discretion of the State Legislature, either 
mode may be adopted without running counter to any of the literal 
inhibitions of the Constitution. But, from some examination of the 
history of this subject, made during the progress of this discussion, 
1 will undertake to demonstrate that the district system of represen¬ 
tation w’as the one contemplated and expected by the framei'S of the 
Constitution. Although the question is no where decided or dis¬ 
tinctly made between those two systems, in the general convention 
which proposed, or in the State conventions which adopted, the Con¬ 
stitution, so as to indicate the one or the other as the only allowable 
mode, yet it is manifest that the district system was in the mind of 
every man who thought upon the matter of representation, as it was 
upon the tongue of every one who spoke or wrote in relation to it, 
during that anxious period when the question of adoption was pend¬ 
ing before the American People. In the 5Gth number of the Fed¬ 
eralist, Mr. Madison, in treating of the Plouse of Representatives, 
and in combating the objection of the opponents of the Constitu¬ 
tion, that the members of the House would not have sufficient local 
information to be fit Representatives of the People, employs this 
language : 


5 

“ Divide the largest State into ten or twelve district''-, and it will be found that there 
will be'no peculiar local interests ui either which will not be within the knowletlge of 
the Representative of the district.” 

In the succeeding; number (57) of that great commentary on the 
Constitution, pursuing the same subject, he asserts, in substance, 
that, were the objections of its opponents read by a person who had 
not seen its provisions relative to representation, he could suppose 
nothing less than that the mode prescribed l)y the State constitutions 
was, in some respect or other, very grossly departed from. He then 
adds: 

“ The oulv diffrrencp niscoverahlp hpfwcfn thp two ctses 1«, that'"eac/i Representa^ 
live of ihe United States will he elected hy five or six ihoxisand citizens^ whdst in Uic indi- 
viduul States the election of a Representative is left to about as many hundred^.” 

Again : in discussing the objection that there could not be ade* 
quate representation in the House, after drawing some arguments 
and illustrations from the British House of Commons, he adds : 

“ Uut we nepd not resort to foreitfo rxoerience on this subject : our own is explicit 
and decisive. The districts in New Hampshire, in which the Senators are chosen im* 
mediatt-ly by the People, are nearly as lar^e as will he nece'-sary for Representatives in 
Congress ; those of Massachusetts are larger than will be necessary for that purpose ; 
and liiose of New- Y''rk sti'l rnore so. In the last State the members of Assembly 
for the cities and counties of New York and Albany ate « h cted by nearly as many 
voters as will he entitled to a Representative in Congress, calru'ating on tiie number of 
sixty-five Representatives only. It makes no difference that, in these senatorial districts 
and counties, a number of Representatives are voted for by each elector at the same 
lime. If the same electors at tlte same time are capable of choosing four or five Rep¬ 
resentatives, they cannot he inrapal)le of choosing one. Pennsylvania is an additional 
example. Some of her counties wtncli elect her Sta'e Representatives are almost as 
large as her distric’s will be bv which her Fedel'al Representative'; will be elected. 
The city o‘ f’Inladelphta is supposed to contain between fifty nnd sixty 'Itoujand souls : 
It w'.ll therefore form nearly two districts for the choice of Federal Representatives. 

Such was the view of the mode of representation in the House 
held by the father of the Constitution, when, almost with the wis¬ 
dom of inspiration, he was urging its adoption upon his jealous and 
doubtful countrymen as necessary to their tranquility, liberty, and 
happiness. Not only does he, in express terms, assume that the dis¬ 
trict system of choosing Representatives is to be every where es¬ 
tablished as the natural one under the Constitution, and that cities 
(Philadelphia being the example) are to he divided for that pur¬ 
pose; but he also unequivocally negatives the idea of elections by 
general ticket, hy declaring that, unlike the senatorial elections in 
the State of New York, where four or five members were voted for 
at the same time by each elector, the choice of Federal Representa¬ 
tives would be limited to one in each district. 

Such, also, was the opinion which seems almost universally to have 
prevailed in the State conventions which deliberated on the recep¬ 
tion of the Federal Constitution. I will detain you by referring to 
the only notice of the subject which 1 find in the debates of the con¬ 
vention of 1788, in North Carolina, which rejected the Constitution. 
Mr. Galloway, a strenuous opponent of the Constitution, stated, by 
way of objection to it, that all the members of Congress would 
probably be taken fiom the seaboard; to which Mr. Steele imme¬ 
diately replied, that this objection was groundless, as the State would 


G 


probably be laid off into districts. There was no response to this 
latter allegation, and it would seem to have met with general ac¬ 
quiescence. 

But, sir, we have more substantial evidence of the expectation, 
not to say intention, of the founders of the Constitution, than that 
embodied in their contemporaneous speeches and writings. Their 
“faith” was shown also by their “ works.” In Virginia, where lived 
Washington, the President of that illustrious assembly which pro¬ 
duced the Constitution, and Madison, its chief author, advocate, and 
expounder, in New York, Massachusetts, the Carolinas, every where 
except in Georgia and Connecticut, the district mode of elections 
was established with the very beginning of the Government; and in 
nearly all of the original States it remains to this day. To question 
its constitutionality now, is to question the validity of the whole body 
of laws enacted since the first elections to Congress in 1789. 

It is said, however, by the Senators from New York and Pennsyl¬ 
vania, (Messrs. Wright and Buchanan,) that the bill proposes an 
innovation not desired or solicited from any source. 1 trust that I 
have already shown* if historical evidence can prove any thing, that 
the district system of elections is not, of itself, an innovation of which 
the framers of the Government (were they living) would complain; 
and its toleration for fifty years, almost with unanimity in the old States, 
and its adoption in nearly three-fourths of the new, affords somewhat 
decisive proof that it coincides with the general wish of the American 
People. I have, moreover, some evidence to show that their ap¬ 
proval of it has gone beyond mere toleration—that, such a favorite 
has it been in their affections, they have repeatedly demanded that it 
should be established and secured to them by the Constitution itself. 
The State whose servant I am has been so devotedly attached to the 
district mode of represeniation, that when her Legislature repealed 
that system of choosing electors of President and Vice President, and 
established the general ticket, though a decisive majority of the 
People, in the parties of that day, were with the Legislature in gen¬ 
eral politics, yet this change produced no little excitement; and it 
could only be excused and the repeal prevented, upon the ground 
that similar changes in other States had rendered it a necessary act 
of self-defence—an argument which our subsequent history has 
shown to have been but too true ; since now, in every State, the 
electors are chosen by general ticket, except in one, where they are 
elected, not by the People, but by the Legislature. Foreseeing that 
a like alteration might be generally made in the manner of electing 
members of the House of Representatives, and deprecating such an 
innovation, her servants here, as well as her General Assembly, 
raised their voices at once in favor of the district system ; and, to 
render it permanent as well as uniform throughout the Union, both 
in the choice of Representatives in Congress and presidential elec¬ 
tors, they demanded an amendment of the Constitution. As early as 
the session of 1813, Mr. Pickens, a highly intelligent and respectable 
member of our delegation in the House, an old associate and friend 
of the Senator fiom Alabama, Mr. King, [Mr. K. nodded assent,] 


7 


offered resolutions of amendment to the Constitution to that effect. 
At the succeeding session of the Legislature, resolutions on the same 
subject appear to have been passed by both Houses, and transmitted 
to the other States of the Union. Here let me remark to the honor¬ 
able Senator from Virginia (Mr. Rives)— from whom I regretted 
to hear that he would vote against this section of the bill, although he 
concurred with us in believing that the district mode of representa¬ 
tion was wisest and best, lest its establishment by law now might, in 
the contest of parties, lead to what he greatly dreaded, the enactment 
of the general ticket system hereafter—that, in his State as well as 
iny own, the manifestations of public opinion have been strong in the 
preference of the district system. On the 18th of April, 1816, in the 
House of Representatives, Mr. Pleasants, of Virginia, laid before the 
House a communication from the Legislature of that State, reciting 
that— 

“The Lf'gis'uture of North Carol'na Ivavitiff proposed tlie following hs an arrendment 
to the Constitution of the United States : 'I'hat, for the purpo.se of choosing liepresenta- 
tivf s in the Congrei-s of the United Siat< s, each Slate shall, by its Legislature, be di¬ 
vided into a number of districts equal to llie nuuiber of Uepreseatatives to which each 
State may be ent t ed. 

“ Tltose districts shall be formed of contiguous territory, and contain as near as may 
be an equal number of inhabitants entitled by the Constitution to be represented. In 
each d'strict the qualified voters shall elect one liepreseii'ativf, and no more.” 

Then providing for the choice of electors of President by districts 
in like manner, and concluding with a resolution declaring that it is 
expedient to adopt the said amendment. 

'rhe Legislature of Massachusetts adopted like resolutions about 
the same time. 

On the 21st of January, 1817, Mr. Pickens, of North Carolina, 
presented to the House the proceedings of the Legislature of that 
State, referring to the “ resolution of the Commonwealth of Massa¬ 
chusetts as being the same in principle with that adopted by the Gen¬ 
eral Assembly of North Carolina at the last session then repeating 
the specific amendments of the Constitution desired, I believe, in the 
very words which I have before read in the communication from the 
Legislature of Virginia, and ending with resolutions in favor of their 
adoption—the whole being embodied in a report signed R. M. Saun¬ 
ders, chairman, and certified to have passed both the Senate and 
House of Commons unanimously^ by John Branch, speaker, and 
Robert Williams, clerk, of the former ; and of the latter James Iredell, 
speaker, and Pleasants Henderson, clerk. 

At the session of 1820, the Hon. J. S. Smith, of North Carolina, 
representing the district in which I reside, offered similar resolutions 
of amendment to the Constitution in favor of the district system of 
choosing representatives and electors; and, on the 25th of January, 
1821, the vote of the Representatives of the People on the resolu¬ 
tions was, yeas 92, nays 54 : so the proposition to amend the Con¬ 
stitution failed, for want of a majority of two-thirds in its favor; but 
the recorded vote is a strong indication of popular opinion in favor ol 
the districts. 

The subject, however, was not permitted to sleep. At the session 


8 


of 1823, Mr. McDuffie, of South Carolina, presented resolutions, T 
believe, in the very words of those of Mr. Smith, and during that 
session submitted an elaborate report, in which the expediency of the 
district system of electing both Representatives and electors is argued 
with great ability. 1 do not perceive that the resolutions were 
pressed to a vote at that session, but the argument of this report vin¬ 
dicates the propriety and necessity of this mode of election in a mas¬ 
terly manner. 

[Mr. Buchanan said he did not know that he would speak on this 
subject; but, as the Senator appeared in some of his remarks to refer 
to him, he wished to say that the precedents cited all proposed to 
amend the Constitution so as to establish the district system. This 
bill proposed to do it by a law of Congress, prescribing that districts 
should be laid off by the State Legislatures. He desire d to hear how 
Congress obtained that power.] 

Mr. Graham resumed. The Senator has done me the honor to at¬ 
tend to my remarks, and hence 1 may have in some degree addressed 
myself to him. I am sensible of the constitutional difficulty suggested 
by that Senator, though it does not appear to me insurmountable, and 
design, before I conclude, to meet it fairly. I have referred to these 
matters in our history thus far with no view to the question of con¬ 
stitutional power, but to show what has been public sentiment in and 
out of Congress in regard to district representation, and to quiet the 
apprehensions of those who seem to dread popular tumults and colli¬ 
sions between sovereign States and the Federal Government, from 
the establishment of that mode of representation which the People 
from the first expected, have so generally exercised, and with such 
an approach to unanimity have adopted in their own States, and call¬ 
ed for throughout the Union—a mode of representation which almost 
every Senator who has participated in this discussion admits, in his 
individual opinion, to be the best, but which, from doubt as to the 
power to ordain it in this manner, on the part of some, from an ap¬ 
prehension that its adoption now may be understood to spring from 
motives of party advantage, and that, in a revolution of parties, it 
may be succeeded by the general ticket system, on the part of 
others, fails to receive that powerful support to which the admitted 
merits of the district system would seem to entitle it. Whatever 
force there may be in these objections, I flatter myself that the dire¬ 
ful consequences which gentlemen anticipate from the passage of this 
law will never be realized. If it be unconstitutional, it yet proposes 
an object so near to the hearts of the People in general, that its con¬ 
stitutionality will be tested and decided in that calm, deliberate, and 
unimpassioned manner which is so necessary to the preservation of 
all our institutions. If it be constitutional, then the superiority so 
generally conceded to it will prevent its repeal in any mutations of 
mere party, much less its being superseded by the general ticket sys¬ 
tem, which finds so little favor for its own sake. 

Mr. President, we are told by Mr. Madison, in the Federalist, what 
is indeed sufficiently evident without the authority of his great name, 
that the peculiarity which distinguishes the two Houses of Congress 


9 


is, “that one branch is a representation of citizens^ the other of 
States.^^ Here the People of the States are represented as aggre- 
gated communities, or political corporations; in the House, they are 
represented as individual members of society—in that capacity in 
which they are required to contribute to the Treasury of the Gov¬ 
ernment, and to furnish blood and bone and muscle lor its defence in 
war—in which they enjoy the great fundamental rights of life, liber¬ 
ty, and pioperty, prosecute for violations of their rights in courts of 
justice, and suffer judgment for offences against the laws enacted by 
Congress as well as by their immediate State Legislatures. And the 
prohibition of the Constitution against originating revenue bills in 
this body was designed to secure the individual man against exac¬ 
tions even proposed by the Representatives of the State of which he 
is a member, and to give the initiation of the laws on this most vital 
subject to those direct Representatives of the People with vshom they 
share a common local interest, the atmosphere of a common neigh¬ 
borhood, and whom they must meet face to face at the ballot-box ; 
nor does it seem quite to consist with the spirit ot this regulation, 
although I have admitted that the letter will allow rt, that those Rep¬ 
resentatives should be chosen by all the electors of the State, instead 
of subdivisions or sections of the people. Thus chosen, they would 
seem to be more appropriate Representatives of the States, as com¬ 
munities, having derived their authority from a vote of the majority 
of the whole People, than even members of the Senate, who are 
elected by the State Legislatures. No one has ever thought of ap¬ 
plying the general ticket system in the choice of members of the 
State Legislatures, and yet popular representation was not intended 
to be more complete in any of them than it was in the House of Rep¬ 
resentatives, on the subjects committed to the jurisdiction of Con¬ 
gress. The very idea of it implies, at least, if we can form any opin¬ 
ion from the usage ot mankind, not that the people are to determine 
the choice of Representatives by the majority of the State or nation 
in the aggregate, but by elections in divisions of greater or less mag¬ 
nitude ; and, accordingly, we find in every free nation, with any great 
extension of country—1 of course exclude the minor Grecian repub¬ 
lics, with territories no larger than the county in which I reside— 
that the representative assemblies of the People have been chosen 
by counties, parishes, departments, districts, by whatever name call¬ 
ed. It ensures that personal and intimate acquaintance between the 
representative and constituent which is of the very essence of true 
representation, and makes political promotion depend as much upon 
the personal and virtuous character of the candidate as upon his talents 
and abilities; whereas, in the great contests of entire States, the re* 
sponsibility of the individual elector being less, there is but too much 
danger that tickets may be made out of those having address or 
adroitness in party management, without reference to private charac¬ 
ter. Sir, we learn from contemporaneous history that a pi incipal and 
powerful objection to the adoption of the Constitution was, that in the 
representation under it, from the largeness ot the electoral bodies, 
the choice would too often fall on those favored by fortune, or, in the 
2 


10 


language of the objectors,) as preserved by those sages who replied 
to them,) on the “ wealthy and well-born.” However erroneous this 
objection of jealous freemen was then shown to be, while districts, 
as we have seen, were alone contemplated, it applies with decisive 
force to elections by general ticket for a considerable number ol 
members: not that wealth has the influence which was then appre¬ 
hended, for it is comparatively seldom in this country that very opu¬ 
lent men have been elected to places in the public councils ; but com¬ 
binations may be formed, by the management of party leaders, and 
party allegiance appealed to for their support, by which the People, 
who pursue their daily avocations at home, deprived of all choice, 
are left no alternative but acquiescence, or not to vote at all. Thus, 
he who aspires to a political career, without enjoying the favor, per¬ 
haps the acquaintance, of the few who control in such matters, (and 
obscure have been the beginnings of many who have attained the 
highest eminence,) has before him the hopeless task of traversing the 
entire State to make known his qualifications and his principles, and 
to encounter at every step of his progress the combined opposition 
perhaps of two sets of party candidates, and the denunciation of the 
entire party press. Sir, in my opinion, no more effectual mode of 
preventing the free choice of the People, and of excluding from the 
House of Representatives many of its most shining ornaments at all 
times—young men who, without adventitious aids, but by the mere 
force of mind and character, under the fostering genius of our insti¬ 
tutions, have worked their way thither—could be devised than the 
establishment of the general ticket system in the larger States of the 
Union. 1 have already adverted to its disasterous effect on the Gov¬ 
ernment itself, by throwing the absolute control of the popular branch 
of Congress into the hands of five or six States who already possess 
the power, by the general ticket system which they have adopted, of 
choosing a President of the United States. 

But, Mr. President, much as the district system is recommended to 
us by the considerations of expediency, of its conformity to the true 
theory of representative government^ and to expectations of the im¬ 
mortal patriots who formed our Government, we cannot adopt it 
by law here unless we possess the constitutional power. The Sena¬ 
tor from Pennsylvania (Mr. Buchanan.) has already intimated that 
the repeated propositions to amend the Constitution in relation to it 
indicates that the power to do it by law was doubted or denied. Sir, 
that suggestion is not sustained by any thing which I have observed 
in the history of these propositions. On the contrary, Mr. McDufifie, 
in his report, to which I have alluded already, does not urge the 
amendment to the Constitution upon the ground of a want of authority 
in Congress to make laws for its regulation, but to put it beyond the 
control of fluctuating and temporary legislation—to make the system 
permanent and not subject to change, as well as “ uni/orm.^^ 
[Here Mr. G. read several passages of the report in support of this 
statement.] So far as an opinion is expressed on the question in dis¬ 
pute, it is in favor of the power now claimed. 

“ It has been seen ” (says he) that the times, places, and manner” 


li 


of electing members to this House are now liable to be prescribed by 
the Legislatures of the several States, “ subject to the controlling and 
superseding power of Congress.''^ These latter words are in italics, 
and need no strained interpretation to show that the author conceded 
quite as much power to Congress over this subject as is asserted by 
the present bill. 

Here, sir, let me also notice certain proceedings in several of the 
State conventions which deliberated on the adoption of the Federal 
Constitution, referred to and much relied upon in the argument of 
the Senator from New York, ( Mr. Wright. ) It seems that, in seven 
or eight of the States, North Carolina being one, the conventions 
declared “ that Congress shall not alter, modify, or interfere in the 
times, places, or manner of holding elections for Senators and Repre¬ 
sentatives, or either of them, except when the Legislature of any 
State shall neglect, refuse, or be disabled by invasion or rebellion, to 
prescribe the same.” And I first supposed the Senator to insist that 
this was a construction of the clause in the Constitution regarding 
elections, and an exposition of the sense in which it was understood 
at the time of ratification. But it appeals this was an amendment 
proposed by these conventions, predicated on the opinion that the 
Constitution, as it stood then and stands now, did authorize Congress 
to interfere and make regulations at pleasure ; and the Senator, as 
he subsequently explained, only referred to these proposed amend¬ 
ments as manifestations of the wishes of those States : and he thence 
argued that it would be disrespectful and a breach of faith towards 
them to pass this bill. If we are to be restrained in the enact¬ 
ment of laws under the Constitution as it is, by what was propos¬ 
ed by way of amendment in the various State conventions, we 
shall soon be stripped of our most important and beneficent powers. 
Take as illustrations these, which I select at random from twcmty- 
six amendments, besides a bill of rights of twenty articles offered by 
the Convention of North Carolina, “ that no navigation law or law 
regulating commerce shall be passed without the consent of two-thirds 
of the members present in both Houses that no standing army or 
regular troops shall be kept up in time of peace without “two-thirds” 
in like manner. These crude suggestions of the jealous spirit of 
freedom, if the Senator’s argument be correct, would require a repeal 
of perhaps half our laws pertaining to commerce and navigation, and 
more than half of those respecting the army. Many objections and 
propositions of amendment were no doubt made to the Constitution 
on its first presentation, which were soon afterwards abandoned even 
by the authors. At the very first session of the first Congress ten 
amendments were proposed and adopted,yvliich were speedily ratified 
and appended to the Constitution ; and at that very session this 
identical project of an amendment to limit the power of Congress 
over elections, which the Senator fiom New York tells us had re¬ 
ceived the approbation of so many States, was proposed in the House 
of Representatives and rejected—not only failing in a majority of 
two-thirds, but not receiving a numerical majority—ayes 23, noes 
28 ; among the latter being James Madison, Jr., and other distin- 


12 


guished members of the Convention of 1787. (House Journal 21st 
August, 1789.) North Carolina, by her second convention, acceded 
to the Union the November succeeding, well knowing what amend¬ 
ments hr.d been approved by Congress and what rejected, (her assent 
to the Constitution being given on one day and to the ten amend¬ 
ments on the next,) without any proposals for additional amendments. 
And from that day to this there has been no renewal of the proposed 
restraint on the power of Congress over the regulation of elections 
from any State whatever. So far as these proceedings, theretore, 
have any force as authority, they show an admission of the power of 
Congress ; a solicitation of some States, before the Gover nment was 
tried by experience, to take it away ; a refusal by the Representatives 
of the People in the first Congress, by a decisive majority, even to 
submit the question to the amending tiibunals for consideration ; and 
an acquiescence in that determination ever since. 

If we examine the words of the Constitution there really seems to 
me to be little room for cavil on the question of power. They are 
these: “The times, places, and manner of holding elections for 
Senators and Representatives shall be prescribed in each State by 
the Legislatur e thereof; but Ciongress may at any time by law make 
or alter such regulations, except as to the places of choosing Sena¬ 
tors.” I understand it to be admitted that, by virtue of these words, 
Congress does possess the power to lay off the districts itself, but that 
it has not power to direct them to be laid off by the Stale Legisla¬ 
tures. 

[Several Senators in opposition declared that they did not make 
this admission.] 

Mr. Graham said he had so understood the concession, and it was, 
at all events, he conceived, too plain to be controverted. He re¬ 
collected the declarations of some that Congress could not, in good 
faith, interfere, until a State was in default, by failure or negligence, 
in respect to its elections. But the language ol the Constitution is, 
that Congress may make or alter. Now, omit the disjunctive 
power to “alter,” and the reading is, “ Congress may, at anytime, 
make such regulations”—create anew such “regulations.” What 
regulations ^ Obviously those of time, place, and manner ol the 
elections. I proceed, therefor e, to the position assumed by the Sen¬ 
ator from New York (Mr. Wright) that, although Congress may 
possess the power to lay off districts throughout the United States, 
by law, you cannot prescribe a system of districts by your law, and 
call on the State Legislatures to carry it into effect. His assertion is, 
if you touch the subject, you take all into your own hands, and must 
go through with it. Is this so } Are time, place, and manner tria 
juncta in uno and indivisible ? Can you not r egulate time without in¬ 
terfering with place, and prescribe manner without meddling with 
either time or place ^ 

[Mr. Wright assented.] 

Well, then, how is it that manner is a unit incapable of division, 
and must be completed, in all its details, by the hand which pre¬ 
scribes its general outlines ? Does not the major include the minor > 


13 


If I have a right to go twain, can I not go one mile ? If, when you 
designate time or place, without more saying, the State Legislatures 
are still bound to regulate the manner of elections, by what discrim¬ 
ination is it that, when you declare the manner only, they are not 
bound to carry that manner into effect as fully as they are obliged to 
appoint time and place ? The manner and places of choosing presi¬ 
dential etectors belong, under the Constitution, exclusively to the 
State Legislatures. The time of choosing them “ Congress may de¬ 
termine.” Congress has declared that they shall be elected within 
thirty-five days before the first Wednesday in December, in every 
fourth year ; and the Legislature of each State, without offence to its 
sovereignty, has fixed for itself the day of election. Yet, according 
to the reasoning of the Senator, Congi ess, having interfered with the 
time, was bound to appoint the precise day in every State. VVhy 
may not Congress declare that Representatives shall be chosen from 
such equal districts as the State Legislatures shall prescribe, as well as 
that electors shall be chosen on such day, within a month, as those 
Legislatures shall set apart ? In the execution of the power con¬ 
tained in the before-recited clause of the Constitution, the State Le¬ 
gislatures are unquestionably the trustees of the People, in the ab¬ 
sence of action by Congress; but they are liable to be controlled, or 
entirely superseded, whenever Congress does act. And, if I may be 
allowed a still further professional illustration, whatever particle of 
authority Congress does not assume over the subject, inheres in them 
as absolutely as the use and possession of an estate cohere in our law, 
except so far as they may be separated by the intervention of a 
power of appointment. And they are bound, as a part of their con¬ 
stitutional duty, to supply any defect w’hich may be left in the regu¬ 
lations prescribed by Congress in this behalf, as fully, to all intents 
and purposes, as they are required to make regulations, out and out, 
if Congress shall leave the entire subject untouched. If there were 
nothing to confer this power on Congress but the word “alter,” it 
signifies a change only in part ; and what more literally corresponds 
with an alteration of the regulations of a State than declaring that, 
instead of one or five districts, it shall arrange as many districts as it* 
has Representatives ^ 

But we are told that we have no power to pass this law, because 
we cannot enforce its execution by penal sanctions; and an urgent 
appeal is made to us by the Senator from New Hampshire (Mr. 
Woodbury) to know whether an armed force ora writ of mandamus 
is to be sent to the State Legislatures to compel them to lay off the 
districts. No, sir, neither. No one ever conceived the idea of com¬ 
pelling a free Legislative Assembly to do, or not to do, any thing by 
physical force, or the precej)t of a court of justice. The crime of 
onnssion or commission in their constitutional duty, like that of pa¬ 
renticide among the Athenians, is provided with no legal sanction, 
but left to the oaths and consciences of men, to an accountability to 
public opinion, and to that constituency whose rights have been out- 
rao-ed or neglected, d’he preservation of this Government greatly 
depends on'the faithful fulfilment of the duties imposed by the Con- 


14 


stitution on the State Legislatures. If a majority of them shall fail 
to elect Senators, (as one has done)—if five or six of those in the 
largest States shall fail to make regulations for choosing electors of 
President and Vice President, in conformity to the laws of Congress, 
the Union would be as effectually dissolved as if we who are sent to 
the legislative halls of this Capitol should obstinately refuse to attend 
in our places and pass the laws annually necessary for the #iupport of 
the Government. It is faith, honor, conscience, and not the “ hang* 
man’s whip,” on which, at last, rest the blessings of this noblest 
human institution which has ever been devised for the security, the 
welfare, and happiness of man. The duties of the States, under our 
Constitution, are not to be determined by their liability to punish¬ 
ment, but by the covenants into which they entered by that instru¬ 
ment. If, by the Constitution fairly construed, they covenanted to 
yield and conform their legislation to that of Congress in the regula¬ 
tion of elections, as I have endeavored to demonstrate, they are as 
sacredly bound to keep that agreement as if the world in arms stood 
ready to enforce it. And, in reply to the asseveration so often re¬ 
peated, that we cannot issue a mandate to the State Legislatures, let 
me say, once for all, the Constitution issued the mandate fifty years 
ago that the legislation of the States in this particular might at any 
time be superseded by that of Congress, either w^holly or in part on¬ 
ly. Instead of issuing an unwarranted mandate to them, we do but 
pass a law', to w'hich our common constituents, the People, speaking 
through the Constitution, require that their legislation should conform. 
But although there is no method of compelling a State to action in 
the performance of her duty, yet if, when she has acted, her conduct 
be not conformable to the Constitution, or a law made in pursuance 
thereof, the act is simplji void, and every tribunal before which it 
comes for adjudication is obliged so to declare it. If, therefore, not¬ 
withstanding this law, a State should return members according to gen¬ 
eral ticket, the House of Representatives, asjudge of the election of its 
members, wmuld be under the necessity of pronouncing the election 
a nullity. I speak of wdiat w'ould be the decision of the House, not 
only from its obligation to support the Constitution and laws, but be¬ 
cause it has already decided. This bill comes to us with all the 
weight of authorit}' which can be given to it by the approbation of 
the august assembly which is hereafter to expound and enforce it. 
In view of this, I have regretted to hear the intimations of Senators 
that certain States would not conform to it, but would elect by gen¬ 
eral ticket, and raise the question before the House. Much as I should 
regret to see the members of any State bringing up such a contro¬ 
versy in the House, so strong are my convictions of the importance 
of district representation to the country in all coming time that I can¬ 
not withhold from it my approbation, from appr ehensions of any such 
result. But, sir, when I look to the expectation, the desire, and the 
practice of the father s of the Constitution in favor of the district sys¬ 
tem—the hold it already has in the minds of the great majority of the 
people; when I contemplate its beneficent effects in protecting the 
smaller States from possible combinations of the great, and the indi- 


15 


viduals from the oppressions of the mass, and remember the patriot¬ 
ism, forbearance, and devotion to the Union which characterize our 
State Legislatures, 1 cannot anticipate controversy in relation to the 
execution of this law ; or, if it shall arise, 1 doubt not that it will be 
conducted and determined with the quietness, dignity, and mutual 
toleration so necessary to ascertain truth, and so salutary in preserv¬ 
ing in their true essence both the Federal and State authorities. In 
that spirit Congress now acts, in merely providing the mode of rep¬ 
resentation, but leaving all the details of interior arrangement to the 
Legislatures of the States, whose local knowledge and personal ac¬ 
quaintance will enable them to consult the popular convenience and 
the popular wish in the formation of districts in a far greater degree 
than can possibly be done here. All must at once perceive that this 
mode of interposition is the least exertion of the authority of this 
Government, and leaves the amplest field of power and discretion to 
the State Legislatures which is at all consistent with the great end 
proposed. 










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